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James Hays is a partner in the firm's New York office and a leader of the Traditional Labor Law Team.

The National Labor Relations Board (the “NLRB” or “Board”) seemingly took very little time off during the holidays and in the last few weeks announced that it is seeking public input on whether to reconsider two significant standards. First, on December 27, 2021, the NLRB issued a notice inviting parties to submit briefs on whether it should reconsider its standard for determining independent contractor status. Second, on January 6, 2022, the Board invited parties to file briefs on whether it should continue to adhere to the standard established for determining whether a facially neutral work rule violates Section 8(a)(1) of the National Labor Relations Act (“NLRA” or the “Act”). These invitations come hot on the heels of the Board’s December 7th invitation for briefing on its standard for determining appropriate bargaining units.

Continue Reading NLRB Rings in the New Year by Inviting Briefing on Multiple, Far-Reaching Standards Impacting Employers

As we previously predicted, significant changes are taking place at the National Labor Relations Board (“NLRB” or the “Board”). To date, much of that change has been in the agenda set by General Counsel Jennifer Abruzzo. Now, President Biden has had the opportunity to impact the composition of the Board itself and thus Board law. President Biden has appointed, and the Senate confirmed, two new democratic members to the NLRB: David Prouty and Gwynn Wilcox, who are both former union lawyers. This gives the Democrats a majority on the Board and indicates a strong likelihood that President Biden’s pro-labor agenda will be approved by the Board. It appears that we now know the first significant change this newly constituted Board will tackle.

Continue Reading NLRB Foreshadows a Return to Union Gerrymandered Bargaining Units

On December 17, 2021, in a “Friday Night Surprise” the Sixth Circuit Court of Appeals lifted the Stay on the Federal Occupational Safety and Health Administration’s COVID-19 Emergency Temporary Standard (ETS).  This seminal ETS applies to employers with 100 or more employees and requires that employees be either (1) vaccinated; or (2) weekly tested and fully masked if unvaccinated.  While it is anticipated that the Supreme Court will ultimately decide whether the ETS stands, OSHA has already stated that they will begin enforcement of the ETS in January 2022.  Specifically, OSHA will enforce all requirements except testing for unvaccinated employees beginning January 10, 2022, and enforcement related to testing will begin February 9, 2022.

Continue Reading OSHA Emergency Temporary Standard Survival Guide

As we previously reported, the National Labor Relations Board (“NLRB” or the “Board”) has been undergoing a seismic change of direction. With two memoranda published September 8th and September 15th, NLRB General Counsel (“GC”) Jennifer Abruzzo looks to take further progress toward fulfilling President Biden’s promise to be the “strongest labor President you have ever had.” Following NLRB Chairman McFerran expressly stating her willingness to explore new remedies for unfair labor practice violations, GC Abruzzo has instructed the regional offices to seek expanded remedies in Unfair Labor Practice (“ULP”) litigation and settlement negotiations.

Continue Reading NLRB General Counsel Issues Memos Calling for New Harsher Penalties for Unfair Labor Practice Violations

Since taking office, New Jersey Governor Phil Murphy has prioritized eliminating misclassification of employees as independent contractors.  In furtherance of this goal, on July 8, 2021, Governor Murphy signed four bills into law which make it easier for the state to (i) identify employers who misclassify employees as independent contractors, and (ii) penalize employers for such misclassification.  Highlights from each of these four laws are summarized below:

Continue Reading New Laws Passed in New Jersey Designed to Identify and Penalize Employers Who Misclassify Employees as Independent Contractors

As we have previously reported, the National Labor Relations Board (“NLRB” or the “Board”) was likely to undergo substantial policy changes under President Biden. This process began when President Biden took the unprecedented step of firing former General Counsel Robb before his four-year term had expired and continued as Peter Sung Ohr, the Acting General Counsel who was appointed to replace Robb, rescinded many of the more notable guidance memoranda Robb issued during his term.

Continue Reading NLRB General Counsel Sets an Agenda to Reverse Trump-Era Board Policy

On January 6, 2021, a bipartisan group of New York State lawmakers introduced Assembly Bill 27, the latest version of proposed privacy legislation that would allow consumers to sue companies for improperly using or retaining their biometric data. Better known as the Biometric Privacy Act (the “BPA”), the bill, if enacted, would impose significant compliance requirements for companies handling biometric data. The BPA would make New York State only the second state with a private right of action that includes statutory damages against entities that improperly use or retain biometric data. If the BPA is signed into law, it would likely bring a flood of class action litigation, similar to that seen in Illinois under Illinois’ Biometric Information Privacy Act (the “Illinois BIPA”).
Continue Reading New York Proposes Biometric Privacy Act With Private Right of Action

When it comes to whether unions have a right to enter an employer’s premises over the employer’s objections, California’s law is the polar opposite of the National Labor Relations Act and the law in most other states.  In California, unions generally have special access rights that nonlabor parties do not have.  Unions are given preferential treatment because of the state’s union-friendly public policies.  However, this may soon change due to the Supreme Court’s recent order granting a hearing in Cedar Point Nursery et. al. v. Hassid where the issue presented is:
Continue Reading SCOTUS to Consider Whether California Unconstitutionally “Takes” Private Property When It Compels Employers to Grant Union Access to Private Property

In an effort to combat the recent rise in COVID-19 cases in New Jersey, on October 28, 2020 Governor Murphy signed Executive Order 192 (the “Order”), mandating health and safety standards to protect New Jersey’s workers during the pandemic.  Effective November 5, 2020, the Order requires every business, non-profit and governmental or educational entity to implement certain protocols to protect employees, customers, and all others who come into physical contact with its operations. Key takeaways are summarized below.
Continue Reading New Jersey Governor Murphy Orders New COVID-19 Workplace Protocols

On September 17, 2020, the U.S. House of Representatives passed HR 2694, the Pregnancy Workers Fairness Act (“PWFA”), in a 329-73 vote.  The Senate will now consider the bill, which, if passed, would require employers to reasonably accommodate pregnant workers and employees with pregnancy-related conditions.  The bill would clarify an employer’s obligations set forth in the 2015 U.S. Supreme Court decision Young v. UPS, 135 S. Ct. 1338 (2015) and subsequent Equal Employment Opportunity Commission (“EEOC”) guidance.
Continue Reading Pregnancy Workers Fairness Act Heads to the Senate

On September 18, the Board’s GC issued GC Memo 20-14, entitled Summaries of Advice Merit Determinations Related to Coronavirus Disease 2019 Issues for the purpose of giving the public a better understanding of the GC’s approach to COVID-19 related issues.  What emerges is a clear message—while the pandemic can impact certain obligations under the National Labor Relations Act, the agency will not permit employers to use the pandemic as a sword to engage in unlawful conduct.  Under Agency guidelines, advice memos in such “go” cases cannot be released until the case is closed.  Accordingly, rather than release actual advice memos, the GC’s September 18 memo contained a series of anonymous case summaries in which an employer’s actions relating to the virus were deemed unlawful.  Over the past several months, we have reported on advice memos from the NLRB General Counsel’s Division of Advice finding various employer actions in dealing with COVID-19 issues to be permissible under the NLRA (see our recent postings here and here).  The GC’s latest memo includes a list of these earlier advice memos in which an employer’s COVID-19 conduct was found lawful.  What follows is a description of some of the issues and settings rendering these matters meritorious and therefore “go” cases.
Continue Reading GC Finds Merit in COVID-19 Related ULP Cases in GC Memo 20-14